Judgment Sheet

 

IN  THE  HIGH  COURT  OF  SINDH  AT  KARACHI

 

Constitutional Petition Nos.D–2386/2011, D–315/2012,

D–3323/2012, D–3443/2013, D–1428/2015, D–5679/2016,

D–1047/2017, D–1048/2017 and D–1092/2017.

 

 Before :

                                                                                     Mr. Justice Nadeem Akhtar

Mr. Justice Fahim Ahmed Siddiqui

            PETITIONERS :

 

Karachi Property Investment Company (Pvt.) Limited,

petitioner in C.P. No.D-2386/2011,

through Mr. Salahuddin Ahmed Advocate.

 

Coronet Enterprises (Pvt.) Limited,

petitioner in C.P. No.D-315/2012,

through Mr. Nasir Hussain Jafferi Advocate.

 

Dr. Saleem Goolamali, petitioner in C.P. No.D-3323/2012,

through Mr. Mustafa Lakhani Advocate.

 

Ava Ardeshir Cowasjee, petitioner in C.P. No.D-3443/2013,

through Mr. Muhammad Abdur Rahman Advocate.

 

Cyrus R. Cowasjee and Ava A. Cowasjee,

petitioners in C.P. No.D-1428/2015,

through Mr. Muhammad Abdur Rahman Advocate.

 

Hashoo (Pvt.) Limited, petitioner in C.P. No.D-5679/2016,

through Mr. Muhammad Abdur Rahman Advocate.

 

Eduljee Dinshaw (Pvt.) Limited and Khorsheedbano

and Nadirshaw Eduljee Dinshaw Charity Trust,

petitioners in C.P. No.D-1047/2017,

through Mr. Muhammad Abdur Rahman Advocate.

 

Eastern Automobiles (Pvt.) Limited and Spenta Kandawalla,

petitioners in C.P. No.D-1048/2017,

through Mr. Muhammad Abdur Rahman Advocate.

 

Ardeshir Khursheed Marker and Kairas Nader Kabaraji,

petitioners in C.P. No.D-1092/2017,

through Mr. Muhammad Abdur Rahman Advocate.

 

RESPONDENTS :

 

Government of Sindh, the Advisory Committee constituted

U/S 3 of the Sindh Heritage (Preservation) Act, 1994,through

its Chairman (Chief Secretary Sindh) and Commissioner

Karachi, through Mr. Miran Muhammad Shah, A.A.G.

 

Sindh Building Control Authority, through Rao Sarfaraz Khan Advocate.

 

City District Government Karachi, called absent.

                         

            Dates of hearing : 19.04.2016, 26.04.2016, 11.05.2016, 22.02.2017,

                                            02.03.2017, 21.03.2017, 30.03.2017 and 29.04.2017.

 

 

J U D G M E N T

 

NADEEM AKHTAR, J. – Through these petitions filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have impugned Notification No.OSD/CHC/185/2010 dated 25.04.2011 issued by the Government of Sindh, Culture Department, which was published on 14.05.2011 in newspapers and on 07.06.2011 in the Sindh Government Gazette, Notification No.OSD/CHS/4-59/2012 published in newspapers on 21.12.2012, Notification No.SO-I/CTS&YAD/4-99/95 dated 07.09.1995 and Notification No.OSD/CTS& YAD/4-99/95 dated 15.09.1997. The impugned notifications were issued under Sub-Section (1) of Section 6 of the Sindh Cultural Heritage (Preservation) Act, 1994, (‘the Heritage Act’) in order to declare more than 1,000 premises and sites in the city of Karachi described in the Schedule contained therein to be Protected Heritage within the meaning of the Heritage Act. The petitioners are aggrieved as, according to them, the immovable properties owned by them have been listed and declared in the impugned notifications as Protected Heritage in violation of the Heritage Act. They have prayed inter alia that the impugned notifications be declared as arbitrary, irrational, malafide and ultra vires to the Constitution and the parent Act ; their properties be delisted ; the respondents be restrained from giving effect to the impugned notifications in relation to their properties ; and, Chapter 15 of the Karachi Building & Town Planning Regulations, 2002 (‘the Regulations’), being ultra vires to the Heritage Act, Sindh Building Control Ordinance, 1979 (‘SBCO’), and Articles 4, 10-A, 23 and 24 of the Constitution, be struck down.

 

2.         Following immovable properties of the petitioners, which are the subject matter of these petitions, have been declared by the Government of Sindh as protected heritage through the impugned notifications :

 

 

Petitioner(s) in

 

Description of property

Serial number in the impugned notification

 

1.

 

C.P. No.2386/2011

 

Plot Nos.21 and 23/1, CL-5, Civil Lines Quarter, Karachi, commonly known as ‘Hotel Metropole’

 

467

 

2.

 

C.P. No.315/2012

 

Plot No.8, measuring 1,893 sq. yds., SR-5, Serai Quarters Karachi.

 

925

 

3.

 

C.P. No.3323/2012

 

Plot No.101 Mciver Road, measuring 2,000 sq. yds. Civil Lines CL-9/19, Karachi.

 

480

 

4.

 

C.P. No.3443/2013

 

Plot Nos.5 and 10, Mary Road, Bath Island, Karachi.

 

99

 

5.

 

C.P. No.1428/2015

 

‘Mules Mansion’, located at B Willingdon Place, Kemari, Karachi, measuring 4,800 sq. yds.

 

204

 

6.

 

C.P. No.5679/2016

 

Plot No.8, Civil Lines Quarter No.11, Abdullah Haroon Road, Karachi, measuring 13,101 sq. yds.

 

published in newspaper on 21.12.2012

 

7.

 

C.P. No.1047/2017

 

Plot Nos.8 and 9, Serai Quarters No.1, I.I. Chundrigar Road, Karachi, measuring 1,142.25 sq. yds., commonly known as ‘Nadir House’, and Plot No.269, R.A. Lines, Saddar, Karachi, measuring 5,082 sq. yds., commonly known as ‘Spencer House’.

 

397 and 1022

 

8.

 

C.P. No.1048/2017

 

Plot No.70, N.I. Lines, M. A. Jinnah Road, Karachi, measuring 2,672 sq. yds., and Survey No.21/2, Civil Lines Quarter No.6, Karachi, measuring 4,078 sq. yds.

 

52 and 61

 

9.

 

C.P. No.1092/2017

 

Plot No.1, Bath Island Road, Karachi.

 

100

 

 

3.         Mr. Salahuddin Ahmed, learned counsel for the petitioner in C.P. No.D-2386/2011, drew our attention to various provisions of the Heritage Act. He contended that a building can be declared as a protected heritage through Government Notification under Section 6 of the Heritage Act ; under Section 7 of the Heritage Act the Advisory Committee (‘the Committee’) constituted by the Government under Section 3 of the Heritage Act may purchase, assume custodianship or accept the gift, bequest or guardianship of any protected  heritage ; under Section 8 of the Heritage Act, the Committee may propose to the Government to enter into an agreement for the preservation of a protected heritage with its owner, which agreement is voluntary and may be terminated by any of the parties on a three months’ notice ; under Section 12 of the Heritage Act if the Government apprehends that a protected heritage is in danger of being destroyed, injured or allowed to fall into decay, the Government may compulsorily acquire the same through the procedure prescribed under the Land Acquisition Act, 1894 ; under Section 13 of the Heritage Act it is the responsibility of the Committee to maintain and preserve every protected heritage which has been acquired under Sections 7 or 12 ibid ; and, Section 18 provides punishment to any person including the owner who destroys, removes, injures, alters or defaces a protected heritage maintained by the Government under the Heritage Act or in respect of which an agreement has been executed under Section 8 ibid. He submitted that the Government never acquired the rights in Hotel Metropole under Section 7 ibid nor compulsorily acquired the same under Section 12 ibid nor entered into any agreement in respect thereof under Section 8 ibid. He pointed out that much prior to the impugned declaration of Hotel Metropole as a protected heritage and issuance of impugned notification in respect thereof on 25.04.2011, its major portion was demolished in the year 2004 with the approval of the competent authority viz. Karachi Building Control Authority, now Sindh Building Control Authority (‘SBCA’), and since then most of the plot is lying open and is being used as a parking lot. He also pointed out that despite the above position Hotel Metropole has all along been and is still being maintained by its owner and not by the Government, and due to this reason the owner is facing extreme hardship as the remaining structure thereof is extremely dilapidated and a big risk to the occupants. He submitted that the only option is to demolish the entire remaining dilapidated structure and construct a new building in its place, but this option and other proprietary rights enjoyed by the owner cannot be exercised by him because of the impugned notification. He contended that Hotel Metropole, which was constructed in a modern style of architecture in the latter part of the 20th century, has no archaeological, historical or cultural value, nor does it have any distinctive architectural feature so as to allow it to be classified as part of our architectural heritage. He also contended that no objection whatsoever was raised either by the Government or by SBCA when a major portion of Hotel Metropole was demolished in the year 2004, which confirms that it had/has no heritage value.

 

4.         Learned counsel further submitted that the impugned notification, which was issued after 17 years of enactment of the Heritage Act, is arbitrary and contrary to the scheme and intent of the Heritage Act, particularly Section 4 thereof, as it was issued without any application of mind to ascertain the archaeological, architectural, historical, cultural or national value of each building separately on a case to case basis, and without recording any reason for declaring the properties listed therein as protected heritage. He further submitted that the above is evident by the fact that several open plots / spaces, public parks and playgrounds such as Bagh Ibn-e-Qasim developed in the 21st century, and modern buildings like FTC Building, which do not have any heritage value whatsoever, have been declared as protected heritage in the impugned notification without any justification. He also submitted that consultation with and determination by the Committee is mandatory under the Heritage Act for determining the cultural, archaeological, architectural, historical or national value of any premises for declaring it as protected heritage, which was not done prior to the issuance of the impugned notification. It was also submitted by him that the Government has not prescribed or notified any rules under the Heritage Act for laying down the criteria for determining whether any particular premises has sufficient archaeological, architectural, historical, cultural or national value to be declared as protected heritage, therefore, in the absence of rules specifying such criteria and determination by the Committee on the basis of such criteria, the entire exercise and the impugned notification issued in pursuance thereof, being an arbitrary exercise of unstructured discretionary power, is illegal and malafide. He further contended that the only reason given by the Government and the Committee for declaring Hotel Metropole as a protected heritage is that 50 points were awarded to it in the enlistment proposal prepared by the Department of Architecture of NED University. He submitted that the entire basis of awarding the above points to Hotel Metropole was absurd and absolutely baseless, and further that NED University has no role under the Heritage Act to prepare or give enlistment proposal in relation to the process of declaring a building as protected heritage ; and, there is nothing on record to show that the purported enlistment proposal prepared by NED University was accepted by the Government or the Committee after deliberations or proper application of mind. It was urged that the Government and the Committee could not delegate their statutory functions and powers under Sections 4 and 6 of the Heritage Act to NED University, and such delegation and acceptance of enlistment proposal prepared by an unauthorized entity was illegal and void.

 

5.         Mr. Salahuddin Ahmed further contended that no notice was issued to the owner and no opportunity of hearing was provided to him before declaring his property as protected heritage, and the objections submitted by him in this behalf have not been decided till date by the Government. It was urged by him that the right to acquire, hold and dispose of property is guaranteed under Article 23 of the Constitution, and such right of an owner includes his rights to use, enjoy, consume, remove, destroy or alter his property, as he pleases, however subject to any reasonable restriction imposed by law ; and, Article 24 of the Constitution further guarantees that no person shall be deprived of his property save in accordance with law, and compulsory acquisition and taking over possession of his property shall only take place for a public purpose and pursuant to a law that provides compensation therefor. It was strongly urged that the impugned notification is ultra vires the Heritage Act and Articles 4, 10-A, 23 and 24 of the Constitution inasmuch as it has not only seriously impaired the material value of the property, but has also imposed unreasonable and unlawful restriction on the valuable vested rights of the owner to acquire, hold and dispose of his property, and that too without offering or awarding any compensation. It was further urged that since Hotel Metropole is not being maintained by the Government and there is no agreement in respect thereof under Section 8 of the Heritage Act, no restriction whatsoever can be imposed upon its owner to alter or demolish the same or to construct a new building in its place. In support of the above submission, he relied upon Amanullah Khan and others V/S The Federal Government of Pakistan, PLD 1990 SC 1092, Kabushiki Kaisha Toshiba V/S Ch. Muhammad Altaf, PLD 1991 SC 27, Ellahi Cotton Mills Limited and others V/S Federation of Pakistan, PLD 1997 SC 582, Federation of Pakistan and others V/S Shaukat Ali Mian and others, PLD 1999 SC 1026, New Jubilee Insurance Company Limited V/S National Bank of Pakistan, PLD 1999 SC 1126, Director Food NWFP and another V/S Madina Flour and General Mills (Pvt.) Ltd. and 18 others, PLD 2001 SC 1 and Rauf Bakhsh Kadri V/S The State and others, 2003 MLD 777. It was also urged that any interference in the owner’s said rights by SBCA would be illegal as Chapter 15 of the Regulations, particularly regulations 15.3.1, 15.3.2, 15.4.1, 15.4.2 and 15.4.3 thereof, are ultra vires and beyond the scope of SBCO which does not relate to heritage sites ; and, also as the above regulations of Chapter 15 of the Regulations are in conflict with the Heritage Act which is a special law relating specifically to preservation of heritage properties.

 

6.         Mr. Muhammad Abdur Rahman, learned counsel for the petitioners in C.P. Nos. D-3443/2013, D-1428/2015, D-5679/2016,D-1047/2017, D-1048/2017 and D-1092/2017, adopted the arguments advanced by Mr. Salahuddin Ahmed Advocate. Additionally, he submitted that impugned notifications dated 07.09.1995 and 15.09.1997 and the impugned notification published in newspapers on 21.12.2012, are void as the same have not been published in the Sindh Government Gazette as required under Section 6(1) of the Heritage Act and Section 19-A of the Sindh General Clauses Act, 1956. Without prejudice to his above submission he also emphasized that till date no policy has been notified by the Government by which construction on any property can be considered against any objective criteria to be of architectural, historical, cultural or national value to be classified as a protected heritage, although the Government was specifically directed by this Court in C.P. No.D-608/2010 to take proper steps in this behalf. He submitted that without any such criteria in the field, no property can be classified or declared as a protected heritage. In support of the above submission, he relied upon Waris Meah V/S The State and another, PLD 1957 SC 157, Brig. (Retd.) F.B. Ali and another V/S The State, PLD 1975 SC 506, Chairman, Regional Transport Authority, Rawalpindi V/S Pakistan Mutual Insurance Company Limited, Rawalpindi, PLD 1991 SC 14, Inamur Rehman V/S Federation of Pakistan and others, 1992 SCMR 563, Gadoon Textile Mills and 814 others V/S WAPDA and others, 1997 SCMR 641 and Abid Hassan and others V/S PIAC and others, 2005 SCMR 25. Learned counsel further contended that the properties of the petitioners represented by him do not have any architectural, historical, cultural or national value to the city of Karachi or Province of Sindh or Federation of Pakistan, and the objections submitted by them against declaration of their properties as protected heritage were never decided by the Government, nor were they heard before issuance of the impugned notification. He further contended that no physical inspection was carried out in respect of the properties of these petitioners to verify whether they had any heritage value as contemplated by the Heritage Act, and as such the impugned notifications are whimsical, arbitrary, malafide and void. He also contended that several similar properties in the same vicinity of almost the same age and style were either not listed or were delisted by the Government, which is a clear violation of Articles 4, 9, 14, 23, 24 and 25 of the Constitution. He submitted that the properties of these petitioners have also not been acquired or compulsorily acquired by the Government under Sections 7 or 12 of the Heritage Act, and there is also no agreement in respect thereof under Section 8 of the Heritage Act, and as such no restriction whatsoever can be imposed on the petitioners’ ownership rights under the Heritage Act and/or Chapter 15 of the Regulations. Regarding applicability of Chapter 15 of the Regulations to a protected heritage declared under the Heritage Act, he submitted the same cannot be applied as SBCA has no jurisdiction in respect of any building governed, regulated and protected by the Heritage Act, nor can SBCA frame rules and regulations in respect of any such building. In support of this submission, learned counsel placed reliance upon Khawaja Ahmed Hassan V/S Government  of Punjab and others, 2005 SCMR 186, Azam Wazir Khan V/S Industrial Development Bank and others, 2013 SCMR 678, and Muhammad Amin Muhammad Bashir Limited V/S Government of Pakistan, 2015 SCMR 630.

 

7.         Syed Nasir Hussain Jafferi, learned counsel for the petitioner in C.P. No.   D-315/2012, adopted the arguments advanced by M/S Salahuddin Ahmed and Muhammad Abdur Rahman Advocates. Regarding the property owned by the petitioner represented by him, he contended that since the building was in a dilapidated condition the petitioner applied to KBCA on 29.06.1994 seeking permission to demolish the same, but no action was taken by KBCA ; and, due to such inaction on the part of KBCA, major portion of the building collapsed and since then 90% of the plot is lying vacant. He further contended that the building plan submitted by the petitioner in respect of the new building on the subject plot was duly approved by KBCA on 10.07.1994. It was submitted by him that the petitioner has no other option except for demolishing the remaining old structure which is lying vacant since long, and constructing a new building on his plot, but such rights enjoyed by the petitioner cannot be exercised by him because of the impugned notifications. He further submitted that the subject property has no historical, cultural, architectural or national value in view of the above, and as such its enlistment and declaration as a protected heritage is arbitrary and unjustified.He specifically pointed out that the subject property was not inspected and the petitioner was not heard before issuance of the impugned notification ; and, the same has not been acquired or compulsorily acquired by the Government under Sections 7 or 12 of the Heritage Act, and there is no agreement in respect thereof under Section 8 of the Heritage Act. He also pointed out that the objections dated 20.05.2011 submitted by the petitioner within one month from publication of the impugned notification, were not responded to or decided by the Government.

 

8.         Mr. Mustafa Lakhani, learned counsel for the petitioner in C.P. No.            D-3323/2012, also adopted the arguments advanced by M/S Salahuddin Ahmed and Muhammad Abdur Rahman Advocates. Regarding the property known as Fijebai Villa owned by the petitioner represented by him, he contended that the name thereof has been wrongly mentioned as Nsebai Willa in the impugned notification, which clearly shows that the respondents were not even aware of the correct name of the subject property, which even otherwise was never inspected by them. He also contended that before declaring the petitioner’s property as a protected heritage his legal notice with detailed and specific objections was not responded to by the respondents, opportunity of hearing was never granted to him, and notice / intimation was not issued to him under Section 6(2) of the Heritage Act. He further contended that property No.3 Mciver Road, known as The Retreat, which is situated immediately adjacent to the subject property and is a mirror image of the subject property, has not been listed in the impugned notification as a protected heritage. He submitted that this fact and the fact that the subject property was never inspected, clearly show that the impugned notification is arbitrary, malafide and unfounded. It was urged that declaration of the petitioner’s property as a protected heritage is baseless and illegal also on the ground that the property, major portion whereof was demolished long ago due to its dilapidated and uninhabitable condition, has no architectural, historical, cultural or national value whatsoever. It was further urged that the subject property has not been acquired or compulsorily acquired by the Government under Sections 7 or 12 of the Heritage Act, and there is no agreement in respect thereof under Section 8 of the Heritage Act.

 

9.         In reply to the arguments advanced by the learned counsel for the petitioners, Mr. Miran Muhammad Shah, learned Additional Advocate General Sindh, invited our attention to the preamble of the Heritage Act. He contended that the Heritage Act was enacted with the specific object and purpose of preserving and protecting the history, culture and heritage in the Province of Sindh ;the question as to whether or not a property should be declared as a protected heritage under the Heritage Act could be decided only by the Committee comprising architectural historians, archaeologists, heritage conservators and scholars of traditional arts and crafts, constituted under Section 3 of the Heritage Act ;and, all the properties listed in the impugned notifications, including the subject properties, were selected by the Committee to be declared as protected heritageafter due deliberations, considering all factors relating to the properties keeping in view the preamble of the Heritage Act, and with proper application of mind, and thereafter the same were listed in the impugned notifications as protected heritage in accordance with the Heritage Act. He further contended that the objections submitted by the petitioners could not be decided because they had filed these petitions. He submitted that construction of a protected heritage and matters relating thereto shall be governed by SBCO and SBCA shall have jurisdiction in respect thereof as construction of any nature in any part of the Province of Sindh is governed only by SBCO, and there is no other authority to exercise such powers and functions.In support of his above submission, he relied upon Chapter 15 of the Regulations, and submitted that the same was framed specifically for preservation of heritage buildings, and heritage buildings have been defined therein as the premises or objects declared as protected heritage under the Heritage Act. On our query regarding inclusion of open plots and spaces in the impugned notifications, he submitted that no open plot or space was declared by the Government as protected heritage and there was construction on all such open plots and spaces which was removed / demolished by their respective owners after issuance of the impugned notifications. Learned AAG strongly supported the impugned notifications and applicability of Chapter 15 of the Regulations to protected heritage. It was urged by him that the Heritage Act is the only way to save the ancient and rich history, culture and heritage of the Province of Sindh, and the protected heritage declared thereunder should not be allowed to be altered, modified, defaced or destroyed under any circumstances. He submitted that the petitions are malafide and are liable to be dismissed as the petitioners want to frustrate the object and purpose of the Heritage Act by seeking delisting of their properties which have been declared as protected heritage lawfully under the Heritage Act.

 

11.       Rao Sarfaraz Khan, learned counsel for SBCA, adopted the arguments advanced by learned AAG. He also relied upon the definition of heritage buildings contained in regulation 15-1 of the Regulations. He contended that under Section 21-A of SBCO, SBCA is empowered to frame regulations, and as such the Regulations, including Chapter 15 thereof, framed by SBCA have the force of law. He submitted that Chapter 15 of the Regulations relating to heritage buildings is fully applicable to all buildings declared as protected heritage under the Heritage Act. He further submitted that the prayer made by the petitioners for striking down Chapter 15 of the Regulations cannot be granted as the two laws viz. the Heritage Act and the Government of Pakistan Antiquities Act, 1975, mentioned in the definition of heritage building contained in regulation 15-1, will also be struck down in such an event. Learned counsel for SBCA did not dispute that permission was granted by SBCA to the owner of Hotel Metropole to demolish it and a building plan submitted by the petitioner in C.P. No.D-315/2012 for construction of a new building was approved by SBCA.

 

12.       We have heard learned counsel for the parties at length and with their able assistance have also examined the material available on record and the law cited at the bar. Before discussing the merits of the case, we have carefully examined the following provisions of the Heritage Act which are relevant to the controversy at hand in our opinion :

 

I.          Section 2(vi) defines Protected Heritage as any premises or objects of archaeological, architectural, historical, cultural or national value declared as such by Government by notification that would include the land externally appurtenant such thereto and the outer walls thereof.

 

II.         Section 3(1), for the purpose of the Heritage Act, Government shall constitute an Advisory Committee consisting of a Chairman, and may also appoint six other members out of whom three shall be architectural historians, archaeologists, heritage conservators and scholars of traditional arts and crafts.

 

III.        Section 4 provides that if any question arises whether any premises or objects is of archaeological, architectural, historical, cultural or national value, it shall be referred to the Government which shall after consultation with the Advisory Committee decide the same and the decision of Government shall be final.

 

IV.       Section 6 relates to Declaration of Protected Heritage. Under Section 6(1), Government may by notification in the official gazette on the recommendation of the Committee, declare any premises of architectural, historical or cultural value to be protected heritage within the meaning of the Heritage Act ; under Section 6(2), a copy of every notification published under Section 6(1) ibid shall be published in newspapers and affixed in a conspicuous place on or near such premises / object together with an intimation that any objections to the issue of the notification received by Government within one month from the date of notification shall be taken into consideration ; and, Section 6(3) provides that on expiration of the period of one month provided in Section 6(2) ibid, the Government, after considering the objections, if any, may confirm or withdraw the notification.

 

V.        Section 7 deals with Acquisition of right in or guardianship of a protected heritage of the Government. Under Section 7(1), the Committee with the sanction of the Government may purchase or assume custodianship of any protected heritage ; under Section 7(2), the Committee may accept the gift or bequest of any protected heritage ; and, Section 7(3) provides that owner of any protected heritage may by written instrument appoint the Committee as guardian of the protected heritage, and the Committee may with the sanction of Government accept such guardianship.

 

VI.       Section 8 deals with Preservation of Protected Heritage. Under Section 8(1), the Committee may with the previous sanction of Government propose to the owner to enter into an agreement with Government for preservation of any protected heritage ; under Section 8(2), the agreement under Section 8(1) ibid may provide inter alia for maintenance and custody of protected heritage and duties of any person who may be employed to watch it, restriction on the owner’s right to destroy / remove / alter or deface the protected heritage, notice to be given to Government by the owner of the land on which protected heritage is situated in case he intends to sell the same, right reserved by Government to purchase the same or any specified portion thereof at its market value, and or any matter connected with the preservation of the protected heritage which is the subject of such agreement between the owner and Government ; and, under Section 8(4), either party may terminate any such agreement on giving three months’ written notice to the other party.

 

VII.      Section 10(1) provides that if it is apprehended that any person intends to destroy, remove, alter, deface or imperil the protected heritage or to build on or near the site thereof in contravention of the terms of the agreement for its preservation under Section 8 ibid, the Committee may make an order prohibiting any such contravention.

 

VIII.     Under Section 12(1), if the Government apprehends that a protected heritage is in danger of being destroyed, injured or allowed to fall into decay, it may acquire it under the provisions of the Land Acquisition Act, 1894, as if preservation of a protected heritage was a public purpose within the meaning of the said Act ; and, under Section 12(2)(b), the above powers of compulsory purchase shall not be exercised in the case of any protected heritage which is the subject matter of a subsisting agreement executed under Section 8 ibid.

 

IX.       Section 15 provides that a protected heritage declared under the Heritage Act shall not be used for any purpose inconsistent with its character.

 

X.        Section 18 provides that where any person including the owner destroys, removes, injures, alters or defaces a protected heritage maintained by the Government under the Heritage Act or in respect of which an agreement has been executed under Section 8 ibid, shall be punishable with fine which may extend to Rs.100,000.00 or with imprisonment which may extend to three years, or with both.

 

XI.       Section 19 is the overriding section as it provides that the provisions of the Heritage Act shall have effect not withstanding anything contained in any other law for the time being in force.

 

XII.      Section 20 specifically provides that the Government may make Rules to carry out the purpose of the Heritage Act.

 

13.       All the petitioners have strongly asserted that before declaring their properties as protected heritage, the same were not inspected by the respondents, prior notice of such decision / declaration was never served upon them, copy of the impugned notification was never affixed on or near their properties as required under Section 6(2) of the Heritage Act, the objections submitted by them under Section 6(2) ibid have not been decided or rejected till date, and they were condemned unheard. It is not the case of the Government that copies of the impugned notifications were affixed on or near the subject properties, or objections from the petitioners were not received within time by the Government, or the impugned notifications were confirmed under Section 6(3) of the Heritage Act after due consideration and rejection of the objections received from the petitioners. It may be noted that the Heritage Act does not provide that prior notice should be served upon the owner before declaring his property as a protected heritage. However, publication of notification in newspapers declaring a property as a protected heritage and affixation of such notification in a conspicuous place on or near such property together with an intimation that any objections to the issue of such notification received by the Government within one month from the date of notification shall be taken into consideration, is certainly a mandatory requirement under Section 6(2) of the Heritage Act. Moreover, if objections are received under Sections 6(2) ibid, the Government is bound to consider the same because of the word shall used therein. Not only this, a bare perusal of Section 6(3) ibid further shows that notification declaring a property as a protected heritage could be withdrawn or confirmed by the Government only after considering the objections, if received within thirty days from the notification. This clearly means that in case objections are received within time by the Government, the same have to be decided one way or the other as the question of withdrawing or confirming the notification shall rest solely on such decision.

 

14.       We are of the view that Section 6(3) ibid and Section 4 of the Heritage Act must be read together as the question as to whether or not any premises are of historic, cultural or architectural value, can be decided by the Government only under Section 4 ibid after consultation with the Committee. It may be noted that all the petitioners had submitted objections that their properties did not have any historic, cultural or architectural value and as such the same could not be declared as protected heritage. The procedure prescribed in Sub-Sections (2) and (3) of Section 3 of the Heritage Act for publication and affixation of notification together with intimation to the owner to submit objections within thirty days, consideration of such objections and to withdraw or confirm the notification after considering objections, as well as the provisions of Section 4 of the Heritage Act for determining whether or not any premises are of historic, cultural or architectural value, appear to be based on the well-established principle of natural justice as they provide a fair opportunity to the owner to raise objection against declaration of his property as a protected heritage. However, in the present cases, it is an admitted position that the petitioners’ objections received within time by the Government were not decided or rejected. Thus, not only the mandatory provisions of Sub-Sections (2) and (3) of Section 6 and those of Section 4 of the Heritage Act, but the well-recognized principles of natural justice were also violated in these cases. It was argued before us on behalf of the Government that the objections were not decided as the petitioners had filed these petitions. This argument cannot be accepted as impugned notifications were issued between the period 07.09.1995 to 21.12.2012, whereas the first of these petitions was filed on 02.07.2011 and the last one on 21.02.2017. In any event, the Government was bound under Section 4 ibid to decide the question / objection as to whether or not the subject properties had any historic, cultural or architectural value, and after receiving objections from the petitioners, the Government was bound under Section 6(3) ibid to withdraw or confirm the impugned notifications on the basis of the objections received by it under Section 6(2) ibid. However, there is nothing on record to show that the above question, which goes to the root of these cases, was decided by the Government under Section 4 ibid, or any of the impugned notifications was confirmed as required under Section 6(3) ibid. In the absence of a decision of the Government on the above question and confirmation of the impugned notifications by the Government, specifically provided for in the Heritage Act, not only did the impugned notifications cease to have effect to the extent of the subject properties, but the subject properties also ceased to fall within the definition of protected heritage.

 

15.       The petitioners have alleged that their properties were declared by the Government and Committee as protected heritage in an arbitrary manner, without any justification and application of mind, and without following any prescribed rules. It is the case of the petitioners that the Heritage Act does not provide the criteria and procedure for this purpose, no rules have been made under Section 20 thereof to carry out its purpose, and in the absence of proper rules, the impugned discretion exercised by the Government is arbitrary and illegal. In this context, the following are the well-established principles for ascertaining whether the discretion exercised by the authority concerned is lawful or not :

 

a.         Wherever wide-worded powers conferring discretion are found in a statute, there remains always the need and desirability to structure the discretion. The structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve a high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedures.

 

b.         The wide-worded conferment of discretionary powers or reservation of discretion without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance, but where the authorities fail to rationalize it and regulate it by rules, policy statements or precedents, the Courts have to intervene more often than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times.

 

c.         Discretionary decisions should be made according to rational reasons which means that there should be findings of primary facts based on good evidence and decisions about the facts be made for reasons which served the purposes of the statute in an intelligible and reasonable manner. Actions which do not meet these threshold requirements are arbitrary and might be considered as a misuse of powers.

 

d.         It is a well-recognized rule of Constitutional interpretation that there is a presumption in favour of the constitutionality of a legislative enactment, but if there is on the face of a statute no classification at all and no visible differentia with reference to the object of the enactment as regards the person or persons subjected to its provisions, then the presumption is displaced. Courts cannot presume that there must be some undisclosed or unknown reasons for subjecting certain individuals to discriminatory treatment, for in that case the Courts will be making a travesty of the fundamental right of equality before law enshrined in the Constitution.

 

e.         Even where there is no guideline in guiding rules provided for exercise of discretion, it is not unbridled or unfettered, but the same is to be exercised reasonably, fairly and justly, without giving any cause of complaint to any person who may be interested in or is affected by exercise of such discretion. The fairness is reflected if the action does not suffer from partiality, discrimination, arbitrariness, bias and is not manifestly unjust.

 

f.          To make exercise of discretionary power valid it is necessary that apart from being legal it should also be reasonable. The rule of reasonableness is so embedded in the Jurisprudence that even where statute confers arbitrary powers on an authority, it is to be read in such statute that the authority while exercising its discretion shall act reasonably. In order to make a classification reasonable, it should be based on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out, and the differentia must have rational nexus to the object sought to be achieved by such classification.

 

g.         While conferring discretion on an authority the statute does not intend to arm such authority with unfettered discretion which may be beyond the limits of reason and comprehension of a man of ordinary intelligence. The Courts when examining the validity of any action of any authority on the ground of reasonableness must examine the nature, object and scheme of the statute, the exact parameters within which power has been conferred and also the manner in which the authority has exercised such power.

 

h.         When legislature confers a wide ranging power, it must be deemed to have assumed that the power will be, firstly, exercised in good faith, secondly, for the advancement of the objects of the legislation, and, thirdly in a reasonable manner.

 

i.          Section 24-A of the General Clauses Act, 1897, reiterates the principle that statutory power is to be exercised reasonably, fairly, justly and for the advancement of the purpose of the enactment, and further clarifies that an executive authority must give reasons for its decision. Any action by an executive authority which is violative of these principles is liable to be struck down and no other view is permissible.

 

j.          Any authority vested with a discretion must exercise it himself by applying his independent mind uninfluenced by irrelevant and extraneous considerations. He should neither accept any dictation nor delegate his authority to any other person. Violation of these rules for exercise of discretion will render such discretion illegal.

 

In order to understand and list the above principles, we have been guided by the law laid down by the Hon’ble Supreme Court in the cases of Messers Gadoon Textile Mills, Amanullah Khan, Chairman, Regional Transport Authority, Rawalpindi, Inamur Rehman, Muhammad Amin Muhammad Bashir (supra) and Government of NWFP through Secretary V/S Mejee Flour and General Mills (Pvt.) Ltd., Mardan, 1997 SCMR 1804.

 

16.       In order to justify the procedure and criteria for declaring protected heritage, the Government and Committee had filed report dated 05.08.2013 in C.P. No.D-2386/2011 stating that the initial listing of heritage properties was done by Heritage Foundation headed by architect Ms. Yasmin Lari in the year 1994-1995, and thereafter the criteria for enlistment was developed from time to time by       Mr. Arif Hassan in 1997 and by Ms. Yasmeen Cheema in 2004. It is also stated in the above report that in the year 2006 the Committee invited the Heritage Cell of the Department of Architecture and Planning of NED University to resurvey the historical quarters of Karachi and the buildings listed in Schedule-I, and the criteria for listing heritage properties developed by NED University was approved by the Committee ; and after such approval by the Committee, the impugned notification dated 25.04.2011 was issued. In paragraph 5 of their comments dated 17.08.2012 filed in C.P. No.D-2386/2011, the Government and Committee have stated as under :

 

…………. In fact, there is a comprehensive and objective criteria for listing of properties duly approved by the Advisory Committee of Government of Sindh which is strictly followed by Architecture and Planning Department of NED University, which conducts physical survey of the premises to be recommended and declared as protected heritage. Recommendations of NED University’s survey are discussed and verified by Technical Committee before approval of the Advisory Committee. …………...

 

17.       The above procedure adopted by the Government and Committee shows that the entire exercise of enlisting properties as protected heritage was based solely on the criteria developed and recommended by NED University. Under Section 6(1) of the Heritage Act, on the recommendation of the Committee or otherwise, the Government may declare and notify a property as a protected heritage. We are of the view that property owned by a private person / entity cannot be declared as a protected heritage under this Sub-Section without the recommendation of the Committee duly supported by cogent and valid reasons for such recommendation, and the word otherwise appearing in this Sub-Section for declaring a protected heritage without such recommendation will apply to properties owned by the Government or not owned by private persons / entities as the Government may, without recommendation of the Committee, exercise its discretion in respect of such properties without interfering in the proprietary rights of any individual. Thus, the decision of the Government to declare a property of a private person / entity as a protected heritage under the Heritage Act shall depend only on the recommendation of the Committee. Under Section 3 of the Heritage Act, the Committee is constituted by the Government For the purpose of this Act, which means the Heritage Act. In Khawaja Ahmed Hassan (supra), it was held by the Hon’ble Supreme Court that it cannot be said that an unlimited right of delegation is inherent in the legislative power itself. It may be noted that there is no provision in the Heritage Act whereby the Committee may delegate its functions or powers to any other person or authority, therefore, it cannot be said or assumed that unlimited right of delegation is inherent under the Heritage Act. It is an admitted position that the functions and powers for exercising discretion in order to decide whether a particular property should be declared as protected heritage or not, were not exercised independently by the Committee itself, and the purported discretion was based solely on the criteria developed and recommended by NED University. In this context, we may refer to Messers Gadoon Textile Mills (supra), wherein it was held inter alia by a Larger Bench of the Hon’ble Supreme Court that any authority vested with a discretion must exercise such discretion itself by applying its independent mind uninfluenced by irrelevant and extraneous considerations ; such authority should neither accept any dictation nor delegate its authority to any other person ; and, violation of these rules for exercise of discretion will render such discretion illegal. Therefore, delegation of its functions and powers by the Committee to NED University and exercising discretion in pursuance thereof, being not permissible under the Heritage Act, was void.

 

18.       The purpose and object of enacting the Heritage Act is embodied in its preamble, that is, to preserve and protect ancient places and objects of architectural, historical, archaeological, artistic, ethnological, anthropological and national interest in the Province of Sindh. Whereas, the criteria to select and declare a premises as protected heritage has been clearly laid down only in Section 6(1) of the Heritage Act under which only such premises can be declared as protected heritage which have any historical, cultural or architectural value. Thus, the other ingredients / considerations, namely, archaeological, ethnological, anthropological, artistic and national interest contained in the preamble shall not apply to any premises to be declared as a protected heritage under Section 6(1) ibid. Since it is a settled law that the preamble is always key to interpret the statute as held in Fazal Dad V/S Col. (Rtd.) Ghulam Muhammad Malik and others, PLD 2007 SC 571, the property declared as protected heritage under Section 6(1) ibid must be ancient, and the object and purpose of declaring it as protected heritage must be to preserve and protect it. The word ancient mentioned in the preamble has not been defined anywhere in the Heritage Act. We have noticed that there is nothing on record to show that any exercise was undertaken or any findings were given with reasons by the Committee and Government that the subject properties, or for that matter all the properties listed in the impugned notifications, were required to be preserved and protected as they were ancient and they had any historical, cultural or architectural value. Moreover, no rational reasons, findings of primary facts based on good evidence and/or decisions about the facts necessary for declaring properties as protected heritage were recorded before issuing the impugned notifications, which were necessary before taking the impugned discretionary decision as held by the Hon’ble Supreme Court in Government of NWFP through Secretary (supra). Since the Heritage Act confers wide ranging power to the Government inter alia to declare properties owned by private persons / entities as protected heritage, it must exercise such power in good faith, for the advancement of the objects of the Heritage Act, and in a reasonable manner. This view expressed by us is fortified by Muhammad Amin Muhammad Bashir (supra) wherein the Hon’ble Supreme Court was pleased to further hold that Section 24-A of the General Clauses Act, 1897, reiterates the principle that statutory power is to be exercised reasonably, fairly, justly and for the advancement of the purpose of the enactment, and further clarifies that an executive authority must give reasons for its decision ; any action by an executive authority which violates these principles is liable to be struck down ; and, no other view is permissible.

 

19.       In the above circumstances, the impugned discretion and notifications also violate the law laid down by the Hon’ble Supreme Court in Messers Gadoon Textile Mills (supra) that in order to make a classification reasonable, it should be based on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out, and the differentia must have rational nexus to the object sought to be achieved by such classification. In the absence of the above, this Court cannot presume that there must be some undisclosed or unknown reasons for subjecting owners of the properties listed in the impugned notifications to discriminatory treatment as such presumption will tantamount to making a travesty of the fundamental right of equality before law enshrined in the Constitution as held by the Hon’ble Supreme Court in Inamur Rehman (supra). In addition to the above, we have noticed that the law laid down by the Hon’ble Supreme Court in the cases of Amanullah Khan and Messers Gadoon Textile Mills (supra) that seven instruments viz. (i) open plans, (ii) open policy statements, (iii) open rules, (iv) open findings, (v) open reasons, (vi) open precedents and (vii) fair informal procedure, are necessary for structuring of discretionary power, has not been applied or followed before issuing the impugned notifications, and instead only the criteria developed and recommended by an unauthorized entity was adopted, approved and followed by the Committee and then by the Government for declaring personal properties of private persons as protected heritage. Enlisting open lands and model buildings in the impugned notifications as protected heritage creates serious doubt about the discretion purportedly exercised by the Government and Committee. In view of the above major deficiencies and glaring violation of well-settled principles for exercising discretion, the impugned discretion exercised by the Government and Committee for declaring the properties listed in the impugned notifications as protected heritage, is not sustainable in law or on facts.

 

20.       We shall now consider the submissions made on behalf of the petitioners that no rules have been made under Section 20 of the Heritage Act to carry out its purpose, the impugned actions taken by the Government without following any prescribed criteria or rules were arbitrary and illegal, Chapter 15 of the Regulations is in conflict with the Heritage Act and ultra vires the SBCO, and the said Chapter 15 is inapplicable to properties declared as protected heritage under the Heritage Act. Since all the above questions are interlinked, we propose to discuss and decide the same together. Section 20 of the Heritage Act specifically provides that Government may make rules to carry out the purpose of this Act. The words this Act appearing in this Section are significant, which clearly mean that the purpose of the Heritage Act can be carried out only under the rules made thereunder. In our view, no other interpretation of Section 20 ibid is possible because of its plain and unambiguous language. It is not the case of the Government that any rules were made under Section 20 ibid and the impugned exercise of declaring protected heritage was undertaken in pursuance of such rules. In fact, it has been vehemently argued before us by learned AAG and learned counsel for SBCA that impugned Chapter 15 of the Regulations is fully applicable to protected heritage as it relates to preservation of heritage buildings which have been defined therein as premises declared as protected heritage under the Heritage Act. In view of their insistence, we had to examine relevant provisions of SBCO under which the impugned Regulations have been framed. The purpose and object of promulgating SBCO is specified in its preamble, that is, to regulate the planning, quality of construction and buildings control, prices charged and publicity made for disposal of buildings and plots by builders and societies and demolition of dangerous and dilapidated buildings in the Province of Sindh. Section 21-A(1) of SBCO provides that SBCA may frame regulations not inconsistent with the provisions of this Ordinance and the rules made thereunder for carrying out the purpose of this Ordinance. The words this Ordinance used in Section 21-A(1) clearly denote that if any regulations are framed under SBCO, the same shall be applied for carrying out the purpose of only SBCO.

 

21.       As discussed above, the purpose and object of enacting the Heritage Act, as specified in its preamble, is to preserve and protect ancient places and objects of architectural, historical, archaeological, artistic, ethnological, anthropological and national interest in the Province of Sindh, which purpose and object have no nexus whatsoever with the above mentioned purpose and object of SBCO. The Heritage Act and SBCO were brought in the field for separate, distinct, specific and special purposes, and the functions, powers and jurisdiction of the Government under the Heritage Act and of SBCA under SBCO are also separate, distinct, independent and exclusive in respect of respective subject matters falling separately under both the said laws. In our humble opinion, both the laws are special laws in their own ways in relation to and to the extent of the specific aim, object and purpose clearly defined therein. The Heritage Act is a special law for preservation and protection of ancient places and objects in the Province of Sindh declared as protected heritage under the said Act ; whereas, SBCO is a special law for regulating the planning, quality of construction, building control, prices charged, publicity made for disposal of buildings and plots by builders and societies, and demolition of dangerous and dilapidated buildings in the Province of Sindh. It is important to note that preservation or protection of heritage buildings / protected heritage mentioned in the impugned Chapter 15 of the Regulations does not fall within the scope of SBCO, and such power, authority and jurisdiction vest only with the Committee and Government under Sections 8, 10, 12 and 18 of the Heritage Act, which have the overriding effect by virtue of Section 19 of the Heritage Act. As noted above, the Heritage Act and SBCO, being special laws and independent of each other, have specific provisions for making rules and regulations only for carrying out their respective purposes. Therefore, rules or regulations made under either of the said laws cannot be applied to the subject matter of the other law.

 

22.       In view of the above, we are of the considered view that the impugned Chapter 15 of the Regulations, being ultra vires the SBCO and in clear conflict with the Heritage Act, cannot be applied to protected heritage declared under the Heritage Act, and this view expressed by us is fortified by Khawaja Ahmed Hassan (supra). In the above-cited case, it was held inter alia by the Hon’ble Supreme Court that if the rules framed under the statutes or bye-laws framed under the rules are in excess of the provisions of the statute or are in contravention of or inconsistent with such provisions, then these provisions must be regarded as ultra vires of the statute and cannot be given effect to ; a rule-making body cannot frame rules in conflict with or derogating from the substantive provisions of the law or statute under which the rules are framed ; rules cannot go beyond the scope of the Act nor can they, by themselves, enlarge the scope of statutory provisions or militate against the provision under which they were made ; in each case it is the duty of the Courts to be satisfied that the rules and regulations are made by the authority mentioned in the Act and they are within the scope of the power delegated therein ; rules made under any Act could never be intended to override the specific provisions of the Act itself ; the purpose of the rules is to provide for procedural matter or matters which are subsidiary to the provisions of the Act ; and, the general power to make rules cannot be used to widen the purposes of the Act or to add new and different means for carrying out or to depart from and vary its terms.

 

23.       Regarding making rules under the Heritage Act, the well-established principles in this context inter alia are that when the legislature confers power on Government to frame rules it is expected that such powers will be used only bonafide, in a responsible spirit and in the true interest of the public and in furtherance of the object for the attainment of which such powers were conferred ; the power conferred upon the Government to frame rules is not unlimited, but subject to certain prerequisites and conditions ; it cannot be said that an unlimited right of delegation is inherent in the legislative power itself ; and, the Court may reject a regulation as invalid and ultra vires if it fails to comply with the statutory essentials. Reference in this behalf may be made to Khawaja Ahmed Hassan (supra). It may be noted that the Heritage Act came into force on 30.04.1994 and the Government was duty-bound to make rules under Section 20 thereof within a reasonable time. However, admittedly no such rules have been made till date and the entire impugned exercise was undertaken and all the impugned notifications were issued by the Government without making and following the rules that were required to be made under Section 20 of the Heritage Act for carrying out its purpose. Such inaction and failure on the part of the Government is not only disappointing, but is also alarming as the fate of all such ancient properties and objects in the Province of Sindh which fulfill the criteria prescribed under the Heritage Act and ought to have been declared, protected and preserved as protected heritage of the Province of Sindh, has been jeopardized. Therefore, if any of such ancient properties and or objects in the Province of Sindh has been or is removed, lost, destroyed, altered, defaced or imperiled, the entire responsibility of such irreparable loss shall rest solely on the Government. It is well-settled that where the authorities fail to regulate their discretion by the framing of rules, policy statements or precedents, it becomes mandatory for the Courts to intervene in order to maintain the requisite balance for the exercise of statutory power. In this context, reference may be made to the law laid down by the Hon’ble Supreme Court in Amanullah Khan and Muhammad Amin Muhammad Bashir (supra). Because of the unexplained failure on the part of the Government in making rules for carrying out the purpose of the Heritage Act, its very purpose to protect and preserve ancient heritage in the Province of Sindh has been frustrated. In Messers Elahi Cotton Mills Ltd. (supra) it was held by the Hon’ble Supreme Court that the law should be saved rather than be destroyed. Therefore, in order to save the Heritage Act the Government shall have to make rules forthwith in order to carry out the purpose of the said Act.

 

24.       In view of our above findings, the questions raised by the petitioners that no restriction whatsoever can be imposed on their ownership rights under the Heritage Act and/or Chapter 15 of the Regulations as their properties have not been acquired or compulsorily acquired by the Government under Sections 7 or 12 of the Heritage Act nor is there any agreement in respect thereof under Section 8 of the Heritage Act, have become immaterial. However, we deem it necessary to observe that the provisions of acquisition or compulsory acquisition of any property by the Government under Sections 7 or 12 ibid, or agreement in respect thereof under Section 8 ibid, or imposition of restrictions on its owner’s rights under Sections 8 ibid or under Sections 10(1) or 15 of the Heritage Act, or imposition of any penalty under Section 18 of the Heritage Act shall apply only to such properties which are declared as protected heritage through due process of law, that is, after fulfilling all the requirements of the Heritage Act discussed above and the rules made thereunder and by strictly adhering to the well-established principles of natural justice, failing which invocation of any of the above provisions of the Heritage Act shall be deemed to be a clear violation of the inalienable fundamental rights of the owner to acquire, hold and dispose of his property enshrined in Articles 23 and 24 of the Constitution. Our above view is fortified by Federation of Pakistan V/S Shaukat Ali Mian (supra) wherein it was held inter alia by the Larger Bench of the Hon’ble Supreme Court that no person can be deprived of his property for public purposes even under any Acquisition Law without payment of compensation which should be based on the market rate and not at the rate fixed by the authority which has acquired or which is instrumental in acquiring the property involved ; and, every citizen and every person for the time being in Pakistan is guaranteed as his inalienable right to enjoy the protection of law and to be treated in accordance with law wherever he may be, and in particular no action detrimental to the life, liberty, body, reputation or property of any person can be taken except in accordance with law.

 

25.       The object and purpose of the Heritage Act to protect and preserve the ancient heritage of the Province of Sindh is of extreme importance, and the Government is duty-bound to carry out the purpose of the Heritage Act to the best of its ability. If in the opinion of the Government any premises or object belonging to a private person or entity falls within the criteria of protected heritage, the valuable and inalienable vested and proprietary rights of the owner in respect thereof guaranteed by the Constitution cannot be curtailed, restricted, suspended or taken away, either temporarily or permanently, even for any public purpose. It must be kept in mind that a private person cannot be compelled or burdened by the Government to sacrifice or surrender his vested ownership rights in his property or to maintain it for any public purpose, and that is why specific provision for purchase and acquisition of such property by the Government has been provided for in the Heritage Act. However, any such action shall be subject to the Constitution and any reasonable restriction imposed by law in public interest. While exercising discretion and taking decision in this behalf, the burden will be on the Government to show that the discretion is not arbitrary, malafide or biased, and the decision has been taken after recording cogent and valid reasons, fulfilling all the requirements of the Heritage Act and the rules made thereunder, and by strictly adhering to the well-established principles of natural justice.

 

26.       We have already held that the impugned notifications are not sustainable as the same were issued without exercising proper discretion, without fulfilling the requirements of the Heritage Act, without making any rules under the Heritage Act or following such rules, and in violation of the well-established principles of natural justice ; that the impugned Chapter 15 of the Regulations is inapplicable to premises declared as protected heritage under the Heritage Act ; and, to save the Heritage Act the Government shall have to make rules forthwith in order to carry out its purpose. After coming to the above conclusion, our main concern is that there might be a number of premises in the impugned notifications that may fulfill the criteria of protected heritage once proper procedure is followed in accordance with law by the Government after making rules and this entire exercise may take some time, but meanwhile the owners of such premises cannot be given a free hand to destroy, remove, injure, alter or deface such premises. Therefore, some interim arrangement is necessary to protect and preserve such premises.

 

27.       As a result of the above discussion, it is held, declared and directed as under :

 

A.        All the impugned notifications, having been issued without exercising proper discretion, without fulfilling the requirements of the Heritage Act, without making any rules under the Heritage Act or following such rules, and in violation of the well-established principles of natural justice, are hereby set aside ;

 

B.        The impugned Chapter 15 of the Regulations, being ultra vires the SBCO and in clear conflict with the Heritage Act, is inapplicable to protected heritage declared under the Heritage Act ;

 

C.        The provisions of acquisition or compulsory acquisition of any property by the Government under Sections 7 or 12 of the Heritage Act, or agreement in respect thereof under Section 8 of the Heritage Act, or imposition of restrictions on its owner’s rights under Sections 8 ibid or under Sections 10(1) or 15 of the Heritage Act, or imposition of any penalty under Section 18 of the Heritage Act shall apply only to such properties which are declared as protected heritage through due process of law, that is, after fulfilling all the requirements of the Heritage Act and the rules made thereunder and by strictly adhering to the well-established principles of natural justice, failing which invocation of any of the above provisions of the Heritage Act shall be deemed to be a clear violation of the inalienable fundamental rights of the owner to acquire, hold and dispose of his property enshrined in Articles 23 and 24 of the Constitution ;

 

D.        The Government of Sindh is directed to make proper and comprehensive rules without fail within sixty (60) days under Section 20 of the Heritage Act to carry out the purpose of the said Act in an effective manner, and to submit compliance report within seven (07) days thereafter through MIT-II of this Court ;

 

E.        The Government of Sindh is further directed to prepare a list, after proper survey and scrutiny in accordance with the Heritage Act and the rules made thereunder, of all such premises in the Province of Sindh that may be declared as protected heritage, and thereafter to issue a notification in respect thereof under Section 6(1) of the Heritage Act within six (06) months. In case objections in this behalf are received by the Government from the owner of any of such premises under Section 6(2) of the Heritage Act within one month of the notification, the same shall be considered and decided by the Government under Section 6(3) of the Heritage Act within one month from the date of receipt of the objections after giving opportunity of hearing to the owner / objector, whereafter the notification shall be withdrawn or confirmed, as the case may be, by the Government under Section 6(3) ibid ; and

 

F.         In order to protect and preserve such properties that may fulfill the criteria of protected heritage once proper procedure is followed by the Government in accordance with law, status quo shall be maintained in respect of all the premises listed in the impugned notifications till the withdrawal or confirmation of the notification, as the case may be, to be issued in the above terms.

 

All these petitions are allowed in the above terms with no order as to costs.

 

 

 

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   J U D G E

 

 

 

 

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         J U D G E